Partly allowed

Ch.Brahmeswara Rao v. Special Deputy Collector

Telangana HC11 Nov 2014AS/2209/2003

Case brief

AI extract

What is this about?

Appeal against reference court order in land acquisition case denied separate compensation for trees but enhanced market value from Rs. 7,500 to Rs. 18,000 per acre based on exemplar rates with 10% escalation. Granted damages at 10% per annum for period between illegal possession and notification.

What did the court decide?

Market value enhanced to Rs. 18,000 per acre; damages granted at 10% per annum from possession date to notification date; interest on solatium allowed from September 19, 2001.

Ch.Brahmeswara Rao Vs Special Deputy Collector — Land Acquisition | Telangana HC (2014)

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HON’BLE SRI JUSTICE R.SUBHASH REDDY AND HON’BLE SRI JUSTICE A.SHANKAR NARAYANA APPEAL SUIT No.2209 of 2003

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JUDGMENT : (per Hon’ble Sri Justice R.Subhash Reddy)

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This appeal, under Section 54 of the Land Acquisition Act, 1894, is filed by the appellant/claimant aggrieved by the common order and decree dated 30.09.2002 in O.P.No.22 of 1989 (along with other connected O.P.Nos.21 and 23 of 1989) passed by the Senior Civil Judge, Nuzvid, Krishna District.

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2. An extent of Ac.2.27 cents of land in Sy.No.61/1 and 176/1, covered by 93 mango trees of 9 years old, 32 mango plants of 6 years old, 72 lemon trees of 8 years, 2 lemon plants of 4 years old, 4 coconut trees of 9 years and 1 coconut plant of 4 years old, situated at Ravicherla Village, Nuzvid Mandal, Krishna District, belonging to the appellant/claimant was acquired for the purpose of excavation of canal of Nagarjuna Sagar Project. A draft Notification under Section 4(1) of the Land Acquisition Act, 1894 (for brevity “the Act”) was published on 28.5.1987 and possession of the land was taken on 1.2.1985. The Land Acquisition Officer, after conducting necessary enquiry, passed Award No.53/87-88, dated 28.3.1988, fixing market value for the subject land at Rs.1,000/- per acre and awarded an amount of Rs.22,770/towards value of tree growth along with all statutory benefits. Though Notification was issued under the provisions of the Act, the Land Acquisition Officer has fixed compensation under the provisions of the Nagarjuna Sagar Project

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(Acquisition of Lands) Act, 1956.

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3. Not satisfied with the market value fixed by the Land Acquisition Officer, the appellant/claimant sought reference under Section 18 of the Act, which was tried in L.A.O.P.No.22 of 1989 by the learned Senior Civil Judge, Nuzvid.

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4. Before the reference Court, in support of his claim for compensation of Rs.30,000/- per acre, the claimant himself was examined as P.W.1, besides examining other witnesses as P.Ws.2 and 3, and marked Exs.A.1 to A.10. On behalf of the referring officer, none were examined and no documents were marked. The reference Court, having considered the oral and documentary evidence on record, has passed the impugned order dated 30.09.2002, holding that the compensation fixed by the Land Acquisition Officer at Rs.7,500/- per acre, being the value of the land existing as on the date of Notification under Section 4(1) of the Act, is just and reasonable and declined to enhance the compensation for the trees. Aggrieved by the same, the present appeal is filed by the claimant.

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5. It is contended by Sri Srinivasa Rao Velivela, learned counsel for the appellant/claimant that the acquired land was covered by orchard of mango and lemon trees and hence the reference Court ought to have considered for enhancement of compensation by adopting capitalization method. It is further contended that though the exemplar of Ex.A.2, copy of sale deed dated 3.9.1985, under which, in the very same village in Sy.No.584, dry land was sold at Rs.15,000/- per acre, the reference Court discarded the said document without assigning any reasons.

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6. On the other hand, it is contended by the learned Government Pleader for Appeals that as the Land Acquisition Officer has fixed market value for the subject land, the appellant/claimant is not entitled for any separate compensation for the trees. It is further contended that having regard to the evidence on record, the reference Court has rightly confirmed the compensation for the subject land at Rs.7,500/- per acre and that there are no grounds to enhance the compensation any further.

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7. Having heard learned counsel for the parties, we have perused the impugned order and the material on record.

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8. From the evidence on record, it is clear that an extent of Ac.2.27 cents of land in Sy.No.61/1 and 176/1, covered by 93 mango trees, 32 mango plants, 72 lemon trees, 2 lemon plants and 4 coconut trees belonging to the appellant/claimant was acquired for the purpose of excavation of canal of Nagarjuna Sagar Project. Though Notification was issued under the provisions of the Act, the Land Acquisition Officer, instead of fixing the market value under the provisions of the Act, has proceeded to fix the compensation under the provisions of the Nagarjuna Sagar Project (Acquisition of Lands) Act, 1956 and accordingly fixed market value for the subject land at Rs.1,000/- per acre and awarded an amount of Rs.22,770/- towards value of tree growth.

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9. Although the learned counsel for appellant/claimant contends that the appellant/claimant is entitled for enhancement of compensation as per capitalization method, in the absence of any evidence with regard to the net income derived from the orchard, it is not possible to fix compensation

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on capitalization method. At the same time, we find force in the contention advanced by the learned counsel for appellant/claimant that there is no reason to discard exemplar under Ex.A.2, under which dry land in the same village was sold at Rs.15,000/- per acre.

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10. From a perusal of the impugned order, it is clear that under Ex.A.2 sale transaction, one Mr. Koteswara Rao has purchased Ac.1.00 of land in Sy.No.584 of the same village in the year 1985 for Rs.15,000/- per acre. However, the said document was discarded by the reference Court on the ground that the land covered by Ex.A.2 is in different survey number. Such a reasoning assigned by the reference Court is not tenable. In the vicinity of the subject land acquired, when dry lands are sold at Rs.15,000/- per acre and when admittedly the subject land acquired is covered by mango, lemon and coconut trees, the reference Court ought to have taken into consideration the exemplar under Ex.A.2 for fixing the market value for the subject land by giving a reasonable escalation in view of the time gap between execution of the sale transaction under Ex.A.2 and the date of Notification for acquisition of the subject lands. It is fairly well settled that in view of the increasing trend in the prices of lands, if there is any time gap, while fixing the market value of the acquired lands, a minimum of 10% escalation can be considered on the value of the exemplar sale transaction.

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11. It is to be noticed that the sale transaction under Ex.A.2 is of the year 1985, whereas the Notification for acquisition of the subject land was issued on 28.5.1987. Therefore, in view of the fact that the land sold under Ex.A.2 is

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a dry land and further in view of the time gap of 2 years between execution of Ex.A.2 and the Notification issued for acquisition of the subject land, we deem it appropriate to give an escalation of 10% on the value of the land and fix the market value for the subject land at Rs.18,000/- per acre. Though the appellant/claimant is seeking enhancement of compensation for mango and lemon trees, we are of the view that once compensation is fixed for the acquired land, the appellant/claimant is not entitled for any separate compensation for the trees existing in the said land. Having regard to the total number of trees existing in the subject land, we are of the view that the amount of Rs.22,770/- already awarded by the Land Acquisition Officer towards value of tree growth holds good.

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12. Further, since the possession of land was taken on 1.2.1985 even prior to the draft Notification, which was published on 28.5.1987, in view of the judgments of the Apex

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Court in R.L. JAIN (D) BY LRS. V. DDA AND OTHERS^[1] and TAHERA KHOTOON AND OTHERS v. R.D.O. AND OTHERS^[2] , the appellant/claimant is not entitled for any statutory benefits on the compensation amount for the period prior to the issuance of Notification. However, in the said judgments, the Apex Court held that in a case where possession was taken earlier to the Notification, the land owners are entitled for rent/damages upto 15% per annum on the compensation awarded, from the date of their dispossession till the date of issuance of preliminary notification. In that view of the matter, since the

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appellant/claimant was illegally dispossessed from the land as long back as on 1.2.1985 and thereby deprived of possession over the land unauthorisedly much prior to the issuance of draft Notification, which was published on 28.5.1987, instead of directing him again for enquiry to ascertain the damages, we hold that the appellant/claimant is entitled for damages/rent at the rate of 10% per annum on the compensation of Rs.18,000/- per acre for the period from the date of taking possession to the date of Notification i.e., from 1.2.1985 to 28.5.1987.

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13. Accordingly, this appeal is allowed in part enhancing the market value for the subject land from 7,500/- to Rs.18,000/- per acre along with all statutory benefits. The appellant/claimant is further entitled to damages at the rate of 10% per annum on the compensation amount. So far as interest on solatium is concerned, as per the judgment of the

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Hon’ble Apex Court in SUNDER v. UNION OF INDIA^[3] , the appellant/claimant is entitled for interest on solatium with effect from the date of the said judgment i.e., on 19.09.2001 till the date of payment of market value of the land at Rs.18,000/- per acre. No order as to costs.

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14. As a sequel, miscellaneous petitions pending, if any, shall stand closed.

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____________________________ JUSTICE R. SUBHASH REDDY

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________________________________ JUSTICE A.SHANKAR NARAYANA 11.11.2014.

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Msr

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HON’BLE SRI JUSTICE R.SUBHASH REDDY AND HON’BLE SRI JUSTICE A.SHANKAR NARAYANA

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APPEAL SUIT No.2209 of 2003